New York State Divorce Laws When a Spouse Has an Affair

by Beverly Bird

Until 1967, adultery was the only grounds for divorce recognized by New York. The state’s code defines it as sexual intercourse between an individual and someone other than her spouse after their date of marriage, so an affair qualifies if the relationship was sexually consummated. However, the rest of New York’s laws pertaining to this divorce ground are not quite as simple.

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Proving the Grounds

In New York, the spouse alleging abuse as divorce grounds has the burden of proof to convince a judge that the affair occurred and that it was sexual in nature. This can be a tricky process because Section 4502 of New York’s Civil Practice Law and Rules does not allow an individual to testify against his spouse in a divorce litigation when his grounds are adultery. Proving adultery is further complicated because judges tend to take the testimony of other witnesses with a grain of salt, as the witnesses might be friends or family members wanting to help the injured spouse. New York courts generally require a spouse who alleges adultery to prove that his partner had the opportunity, the intent and the inclination to stray. Opportunity means she was alone with her paramour for an extended period of time. Inclination means she displayed a romantic interest in her paramour, either in public or through other contact such as text messages or emails. Intent means she deliberately went out of her way to meet with him privately and commit the adulterous act.

Restrictions

New York’s statute of limitations on alleging adultery in a divorce complaint is five years. A spouse cannot discover his partner’s affair, continue living with her and wait for a better time to actually file for divorce if that time is more than five years later. The court will assume he forgave her for the adulterous act. Legally, he has condoned the affair. An exception exists if he honestly did forgive the affair, then his partner strayed a second time. In this case, the statute of limitations begins with her second offense.

Effect on Property and Alimony

Even if a spouse is successful at proving adultery in a divorce action in New York, she might not gain anything from it. Technically, judges cannot consider adultery when deciding issues of spousal support or property distribution. For example, if a wife is guilty of an infidelity but her income is such that she requires alimony for a period of time after the divorce, the wronged husband would still be obligated to pay it. Economic need trumps marital fault. However, if the wife spent marital money on her paramour, a judge would likely compensate the husband for this if he could prove it. He might receive a greater percentage of marital property in the divorce to make up for this money that the marriage lost.

Defenses

New York law allows a spouse to defend herself against allegations of adultery in divorce court. In addition to arguing that her spouse condoned her affair, she might also try to prove that he consented to it at the time it occurred. If the injured spouse also has an affair after learning of his partner’s infidelity, New York law calls this recrimination. If his partner can prove recrimination, the court won’t grant the divorce on a ground of adultery.